Aula DIREITO SUBJETIVO 1

Summary

The transcript delves into the concept of 'subjective rights,' exploring its historical evolution and various theoretical perspectives. The speaker discusses the term's roots in Roman law, its development through modern legal frameworks, and its significance in Western jurisprudence. Different theories are presented, including the 'will theory,' the 'interest theory,' and the 'guarantee theory,' each aiming to define subjective rights from distinct angles. The analysis incorporates complex discussions of rights, obligations, and their relationship to societal norms, highlighting the legal implications in various real-life scenarios, such as inheritance or the rights of unborn children.

Takeaways

• 😀 The concept of subjective right evolved from Roman times and became prominent with the declaration of rights and bourgeois achievements in modernity.
• 😀 Subjective right refers to the individual's or collective's ability to enjoy a right guaranteed by a legal norm or the objective law.
• 😀 Theories about subjective right aim to define its essence, with several attempts including the theory of will, the theory of interest, and the theory of guarantee.
• 😀 The theory of will suggests that subjective right is the protected will of an individual, though it is challenged by cases where individuals have no will (e.g., unborn children).
• 😀 The theory of interest argues that subjective rights are based on protected interests, but it faces challenges because an individual may not have an interest but still possess a right (e.g., the Amazon rainforest as a global interest).
• 😀 The theory of guarantee frames subjective right as the protection of legal freedom, but it is seen as incomplete since it is more about the right to enforce legal rights rather than the right itself.
• 😀 The theory of pretension argues that subjective right is the ability to assert a claim based on a legal norm, even if one does not exercise it immediately.
• 😀 The theory of Kelsen views subjective right as a mere reflection of objective law, where rights and duties only exist within the framework of the legal system.
• 😀 Rights may exist in theory even if not immediately exercised, such as in the case of future claims or rights contingent upon certain conditions (e.g., contractual obligations).
• 😀 The interplay between subjective rights, duties, and legal enforcement highlights the complexity of legal systems and the need for legal action to enforce rights effectively.

Q & A

What is the evolution of the concept of subjective right?

The concept of subjective right has evolved significantly, especially in modern times. The term 'subjective right' gained importance with the recognition of human rights and the achievements of bourgeois society. In classical Roman law, 'facultas agendi' referred to the faculty or ability to act, which was foundational to the modern understanding of subjective rights.

What is the relationship between subjective right and objective law?

Subjective right is a subjective aspect of a norm that is created by objective law. It is a person’s ability to enjoy a certain 'good of life' (which is the object of a legal relationship) through a juridical norm. It exists within the framework of objective law, which creates and governs such rights.

Why can't subjective right be directly defined without considering the theories?

Subjective right is complex and cannot be directly defined without considering the various legal theories. Each theory offers a different perspective on the nature of subjective rights, which need to be understood before reaching a clear definition.

What is the theory of will according to Bernard Vinch?

According to Bernard Vinch's theory of will, subjective right is seen as the juridical protection of an individual's will. However, this theory is limited because subjective rights sometimes exist without the individual's conscious will, such as in the case of unborn children who have rights but no will.

What is the problem with defining subjective right purely in terms of will?

The definition of subjective right based on will is problematic because there are situations where individuals have rights without any active will or awareness of those rights. For example, an unborn child has rights but no will, and there are situations where people are unaware of their rights, such as inheritance.

What does the theory of interest suggest about subjective rights?

The theory of interest, proposed by Rudolf von Jhering, suggests that subjective rights are based on the juridical protection of an individual’s interest rather than their will. However, this theory is also criticized because 'interest' is a broad term and may not always correspond to the protection of an individual's juridical rights.

Why is the theory of interest insufficient to define subjective right?

The theory of interest fails because 'interest' can be interpreted in various ways across different fields like economics, philosophy, and psychology. Furthermore, there are cases where individuals have subjective rights without having any active interest in them, such as when legal rights exist without an individual's direct involvement.

What is the theory of guarantee, and how does it define subjective right?

The theory of guarantee defines subjective right as the ability to guarantee the protection of one’s legal rights through judicial means. It suggests that the right to exercise or refrain from exercising a legal right is ensured by the judicial system, but it does not fully define subjective right as it confuses it with the protection of rights through judicial processes.

How does the theory of pretension differ from the theory of guarantee?

The theory of pretension, as articulated by Miguel Reale, focuses on subjective right as a prerogative protected by law that can be exercised by individuals to demand or contest actions based on norms. Unlike the theory of guarantee, which sees rights as merely protected by judicial action, the theory of pretension emphasizes the proactive right to claim or assert one’s rights.

What is Hans Kelsen’s view on subjective right?

Hans Kelsen views subjective right as a reflection of objective law. According to Kelsen, subjective rights are not independent; they exist only as a consequence of objective law and are inherently tied to duties and obligations. For Kelsen, a legal system cannot recognize subjective rights without corresponding duties imposed by the law.